Split Court Deadlocks on Public Unions, Shifts on Birth Control

Ladies and gentlemen, this is what an out-of-balance Supreme Court looks like. Today, a deadlocked Court issued a one sentence ruling in Friedrichs v. California Teachers Association, an important and highly-anticipated case about agency fees for public employee unions.

Perhaps to avoid a similar outcome in a challenge to Obamacare contraception rules, the Court also shifted gears in that case. Less than a week after oral arguments -- arguments which indicated an equally divided Court -- the Court has asked the parties to submit possible alternative systems to the current exemption procedures for religious employers who do not want to provide birth control coverage to their employees. Let's take a closer look at these two messes.

That ruling upholds the Ninth Circuit's verdict below and is technically a win for unions. Friedrichs dealt with so-called "agency fees" for public unions. In California, as in many states, public employees who are represented by a union have to pay for that representation, whether they are members of the union or not. The point is to stop free riding, preventing workers from getting the benefit of a union-bargained contract without paying their fair share. But Rebecca Friedrichs, a California public school teacher, argued that the agency fee law violated her First Amendment rights by forcing her to support speech she objected to.

It's a win for labor, but it's not much of a victory, leaving the major battles to be fought another day.

Changing Focus in Zubik

Potentially to avoid a similar split in Zubik v. Burwell, a collection of seven challenges to Obcamacare's contraception rules, the Court ordered additional briefing from the parties. Under the current system, petitioners (religious employers including universities and an order of nuns) who object to providing birth control through their health care plans must submit a simple form to their insurer or the federal government. After that, someone else takes over their birth control duties.

But the requirement to submit that form, the petitioners argue, places a significant burden on their religious freedom.

At oral arguments last Wednesday, the Court seemed split between whether to support the current rules or strike them down. Justice Kennedy, who had previously been the swing vote in the case and still may play a deciding role, emphasized the need to identify a less burdensome alternative.

Now the Court has put alternatives at the center of their debate. In a two-page order issued today, it instructed the parties to file additional briefs addressing:

whether and how contraceptive coverage may be obtained by petitioners' employees through petitioners' insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.

If the petitioners can convince the Court that there's an easier alternative to the current one-page form, they could emerge triumphant, forcing the Obama administration to rework its contraceptive mandate plans once again.